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Spiritual Custody: Relational Rights and Constitutional Commitments

Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School during his visitation periods. Patricia Zummo, on the other hand, opposed exposing the children to a second religion. She was concerned that such a mixed spiritual message "would confuse and disorient them." The Zummos brought their custody dispute to the Court of Common Pleas for Montgomery County, Pennsylvania.

The facts of the Zummo case are distressingly typical of the spiritual custody dispute. With high rates of interfaith marriage and divorce, the subject of spiritual custody is certain to be one of continuing concern. To date, courts have treaded with great care on the uncertain constitutional landscape that underlies the competing claims of divorced parents who seek to control the religious education of their children. Of course, the best interests of the child are of central concern in custody cases. In spiritual custody cases, however, the First Amendment rights of the parents significantly complicate the judicial inquiry. Most courts "have refused to restrain the noncustodial parent from exposing a minor child to his or her religious beliefs or practices absent a clear, affirmative showing that these religious activities will be harmful to the child." Nonetheless, it is argued that even this high degree of deference to parental authority is too open to judicial discretion. Critics of the "best interests" standard point to the "constitutional hazards" of such meddling in religious affairs - violations of either or both of the religion clauses of the First Amendment - and call for a direct prohibition of such consideration or some stricter version of strict scrutiny.

I do not think ignoring these religious disputes is practically desirable. Growing up in the midst of a domestic religious civil war, given the special volatility of such disputes, is never in the best interests of the child. To leave this kind of conflict to the good intentions of feuding parents is to abandon the child to a "Hobbesian space in which there is no law." The reluctance of courts to intervene in spiritual custody cases is reminiscent of an earlier era in family law where "the state would not make its courts available for resolving disputes between husband and wife." The notion of family autonomy made women and children particularly vulnerable to "unrestrained authority." Beyond protection against serious harm, children were subject to public neglect "justified by the theory that only parents are responsible for them." Judicial deference in spiritual custody cases presents a similar risk of neglect, similarly masked as a matter of constitutional rights.

Deference to family autonomy or parental free exercise rights in such cases may be a choice our society wishes to make, but it is not a choice that is constitutionally required. The right that people have to direct the spiritual upbringing of children, I will argue, is contingent on the commitment to the work of social ordering they have agreed to undertake as parents - that is, the right of religious parenting (1) is called into existence by a community of interests centered on the welfare of the child, and (2) may cease to exist when that community devolves into a contest of parental religious preferences.